Yale Law Journal
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Baseline framing in sentencing.
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Lawful Ends to Unlawful Wars: Coercion and Voidness in Peacemaking.
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The Unbounded Home: Property Values Beyond Property Lines.
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A jurisprudence of "coming out": religion, homosexuality, and collisions of liberty and equality in American public law.
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The market for loyalties: electronic media and the global competition for allegiances.
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The Politics of Decarceration: Prisoners of Politics: Breaking the Cycle of Mass Incarceration.
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City unplanning.
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Lottery winnings as capital gains.
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An overview.
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Proposing a place for politics in arbitrary and capricious review.
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Equality of Opportunity and the Schoolhouse Gate.
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Judicial review, the congressional process, and the federalism cases: an interdisciplinary critique.
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Voting and vice: criminal disenfranchisement and the Reconstruction Amendments.
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Transitions.
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Why civil Gideon won't fix family law.
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State courts, citizen suits, and the enforcement of federal environmental law by non-article III plaintiffs.
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Leviathan and interpretive revolution: the administrative state, the judiciary, and the rise of legislative history, 1890-1950.
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The boundaries of private property.
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Legitimacy and federal criminal enforcement power.
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The Ideological Origins of American Federalism.
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The common law sovereignty of religious lawfinders and the free exercise clause.
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Common law, common ground, and Jefferson's principle.
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Word Crimes: Blasphemy, Culture, and Literature in Nineteenth-Century England.
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Right and responsibility in Fourth Amendment jurisprudence: the problem with pretext.
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Contract and collaboration.
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The Tenth Amendment and local government.
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"The foundation of our 'regulatory takings' jurisprudence": the myth and meaning of Justice Holmes's opinion in Pennsylvania Coal Co. v. Mahon.
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Tax expenditures as foreign aid.
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Abundance and user control: renewing the Democratic heart of the First Amendment in the age of interactive media.
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Solving the due process problem with military commissions.
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The artist as brand: toward a trademark conception of moral rights.
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The constitutional status of tort law: due process and the right to a law for the redress of wrongs.
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Contracting for cooperation in recovery.
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Constitutional equity.
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Freedom of speech and independent judgment review in copyright cases.
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Unlocking the Potential of Art Investment Vehicles.
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The secrecy interest in contract law.
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Earth in the Balance: Ecology and the Human Spirit.
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A brooding omnipresence: totalitarianism in postwar constitutional thought.
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Double jeopardy law made simple.
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The Radical Roots of the Representative Jury.
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Protecting computer programs as compilations.
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The age of consent.
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Disaggregating legal strategies in the war on terror.
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Changing the wind: notes toward a demosprudence of law and social movements.
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Waging war, deciding guilt: trying the military tribunals.
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The Americans' higher-law thinking behind higher lawmaking.
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Special juries in the Supreme Court.
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Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices.
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Counsel for the poor: the death sentence not for the worst crime but for the worst lawyer.
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Base Constitutional Communities: Lessons from Liberation Theology for Democratic Constitutionalism.
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Before (and after) Roe v. Wade: new questions about backlash.
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Fudging the nudge: information disclosure and restaurant grading.
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Originalism Without Text.
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The Essential Role of Organizational Law.
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The anti-federalists and presidential war powers.
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Absolute priority, valuation uncertainty, and the reorganization bargain.
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Methodological stare decisis and intersystemic statutory interpretation in the choice-of-law context.
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Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation.
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A Question of Intent: A Great American Battle with a Deadly Industry.
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International tribunals and forum non conveniens analysis.
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Viewing CSI and the threshold of guilt: managing truth and justice in reality and fiction.
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Toward an efficient licensing and rate-setting regime: reconstructing s. 114(i) of the Copyright Act.
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Huppert v. City of Pittsburg: the contested status of police officers' subpoenaed testimony after Garcetti v. Ceballos.
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The costs of agencies: Waters v. Churchill and the First Amendment in the administrative state.
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The death of liability.
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The moral menace of Roman law and the making of commerce: some Dutch evidence.
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Indigenous Subjects.(Special Issue on the Law of the Territories)
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Grand visions in an age of conflict.
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The EU general data protection regulation: toward a property regime for protecting data privacy.
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Tribal courts' failure to protect Native American women: a reevaluation of the Indian Civil Rights Act.
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Copyright and a democratic civil society.
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Uneasy labeling.
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A License to Steal: The Forfeiture of Property.
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There's no such thing as a political question of statutory interpretation: the implications of Zivotofsky v. Clinton.
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The reverse-Batson: wrestling with the habeas remedy.
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Contract bankruptcy: a reply to Alan Schwartz.
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Once in doubt.
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Mismeasuring the mismatch: a response to Ho.
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Burke Marshall's memorial.
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The essential dean.
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Bankruptcy contracting reviewed.
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Civil rights, antitrust, and early decision programs.
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The End of Politics.
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Wisdom's idiosyncrasies.
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Original jurisdiction deadlocks.
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A tribute to Burke Marshall.
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On hate and equality.
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Unveiling inequality: burqa bans and nondiscrimination jurisprudence at the European Court of Human Rights.
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Special Meetings and Consent Solicitations: How the Written-Consent Right Uniquely Empowers Shareholders.
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Proxy consent to organ donation by incompetents.
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Unions and the duty of good faith in employment contracts.
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Probable Cause Pluralism.
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Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law.
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A consumer-welfare approach to the mandatory unbundling of telecommunications networks.
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Why Is It Wrong To Punish Thought?
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A case for varying interpretive deference at the state level.
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Citizen Brown.
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The Weaponization of Attorney's Fees in an Age of Constitutional Warfare.
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Negotiating conflict through federalism: institutional and popular perspectives.
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Discrimination by comparison.
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Rejecting the logic of confinement: care relationships and the mentally disabled under tort law.
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Connecting to what matters: remembering Bo Burt.
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Confronting the seduction of choice: law, education, and American pluralism.
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Thank you, Burke.
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The Earth as eggshell victim: a global perspective on domestic regulation.
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Self-help and the separation of powers.
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The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation.
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The city and the poet.
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The president's budget as a source of agency policy control.
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Making the No Fly List fly: a due process model for terrorist watchlists.
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The Prison Rape Elimination Act (PREA) and the importance of litigation in its enforcement: holding guards who rape accountable.
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Effective plea bargaining counsel.
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Bans.
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Privacy rights and abortion outing: a proposal for using common-law torts to protect abortion patients and staff.
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Our imperial criminal procedure: problems in the extraterritorial application of U.S. Constitutional law.
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Limits of competition: accountability in government contracting.
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Condemning Worship: Religious Liberty Protections and Church Takings.
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Tort concepts in traffic crimes.
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Is history repeating itself? Sentencing young American Muslims in the War on Terror.
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Political Liberalism.
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Copyright protection in an opt-out world: implied license doctrine and news aggregators.
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Reviving federal grand jury presentments.
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An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act.
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The History Wars and Property Law: Conquest and Slavery as Foundational to the Field.
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A better interpretation of "special needs" doctrine after Edmond and Ferguson.
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The Kabuki mask of Bush v. Gore. (Case Note).
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Administration and "The Democracy": administrative law from Jackson to Lincoln, 1829-1861.
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When fathers' rights are mothers' duties: the failure of equal protection in Miller v. Albright.
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The American invention of child support: dependency and punishment in early American child support law.
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Narrow clauses and trial balloons.
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Recoupment under Dodd-Frank: punishing financial executives and perpetuating "too big to fail".
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The Dilemma of Localism in an Era of Polarization.
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Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy.
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Localist administrative law.
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Notions of fairness versus the Pareto principle: on the role of logical consistency.
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The Rehnquist Court: Judicial Activism on the Right.
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How Long Is History's Shadow?
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Re-justifying the fair cross section requirement: equal representation and enfranchisement in the American criminal jury.
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Punitive damages as societal damages.
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America's lived constitution.
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Freeing newsgathering from the reporter's privilege.
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Internal separation of powers: checking today's most dangerous branch from within.
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The interpretation-construction distinction in patent law.
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Transitional jurisprudence: the role of law in political transformation.
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The new labor law.
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Private law or social norms? The use of restrictive covenants in Beaver Hills.
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The Bostic question.
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Private race preferences in family formation.
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Rethinking the federal eminent domain power.
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The Other Side.
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The King of Torts.
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Romanticizing democracy, political fragmentation, and the decline of American government.
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Litigating whiteness: trials of racial determination in the Nineteenth-Century South.
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The possibility of a fair Paretian.
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How much difference does the lawyer make? The effect of defense counsel on murder case outcomes.
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Education, equality, and national citizenship.
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Casey and the clinic closings: when 'protecting health' obstructs choice.
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Patterns of American Jurisprudence.
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The Corruption of American Politics: What Went Wrong and Why.
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The Adjudicative State.
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Rules against rulification.
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Sexual Privacy.
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What happened to property in law and economics?
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Rethinking cost-benefit analysis.
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Dissolving cities.
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Mere negligence or abandonment? Evaluating claims of attorney misconduct after Maples v. Thomas.
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The new labor law.
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Targeting the twenty-first century outlaw.
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The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment.
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The Strategies of Anticompetitive Common Ownership.
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Corporate control and idiosyncratic vision.
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Contra nemo iudex in sua causa: the limits of impartiality.
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Spending Money To Make Money: CBO Scoring of Secondary Effects.
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The Lessons of Lone Pine.
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Privacy, personhood, and the courts: FOIA exemption 7(C) in context.
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Remembering Boris.
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Weight discrimination: one size fits all remedy?
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Abolishing coercion: the jurisprudence of American foreign policy in the 1920s.
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Recognizing character: a new perspective on character evidence.
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Ice cube bonds: allocating the price of process in Chapter 11 bankruptcy.
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Political entrenchment and public law.
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Political entrenchment and public law.
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Article III Judicial power, the adverse-party requirement, and non-contentious jurisdiction.
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Constructive notice under the Family and Medical Leave Act.
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Probate lending.
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The costs of cigarettes: the economic case for ex post incentive-based regulation.
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Property and planning.
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Remedies on and off contract.
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Cyberspace, general searches, and digital contraband: the Fourth Amendment and the net-wide search.
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Forbidden conversations: on race, privacy, and community (a continuing conversation with John Ely on racism and democracy).
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The constitutional power to interpret international law.
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Gideon in white/Gideon in black: race and identity in lawyering.
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Alien Nation: Common Sense About America's Immigration Disaster.
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Class ascertainability.
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Sex in Public.
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Government Hacking.
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Autonomy and democracy.
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Writing a Rule for the Aegis: Subordinate Criminal Liability After Trump v. United States.
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Low riding.
